Ruling Means New York City May Redraft Its Regulation to Avoid Preemption by Federal Law

September 11, 2007

WASHINGTON—A federal judge has ruled that cities and states are free to require restaurants to provide calorie counts and other nutrition information, but that in one idiosyncratic way New York City’s regulation is preempted by federal law. The Center for Science in the Public Interest (CSPI) and Public Citizen say that the city may avoid such preemption by making menu labeling mandatory for all chain restaurants with 10 or more outlets, such as McDonald’s, and by not making it contingent on whether a restaurant already makes some nutrition information available voluntarily.

In December, the New York City Board of Health passed a regulation requiring restaurants to list calories on menus and menu boards. But only restaurants that already made calories available voluntarily on brochures, web sites, or elsewhere were covered by the measure. In order to avoid complying, some chains, notably Wendy’s and Chipotle, took down nutrition information from their web site or stopped making it available in New York City.

“The judge provides a road map for cities and states to draft menu labeling regulation so that it doesn’t conflict with federal law,” said CSPI Litigation Director Steve Gardner. “Though it blocks the city from enforcing the regulation that the Board passed, this decision gives cities and states a green light to make nutrition information mandatory at restaurants.”

“The court’s narrow finding is very good news for jurisdictions like King County, Washington, which enacted a menu labeling regulation in July that would not be preempted,” said Deepak Gupta, a lawyer at Public Citizen who wrote a brief in the case. “And the statewide bill that just passed in both houses of the California legislature would also be safe from preemption under this ruling.”

In July, Public Citizen and CSPI filed a brief in support of the city’s menu labeling regulation, signed by Representative Henry Waxman (D-Calif.), former FDA commissioner David Kessler, the American Medical Association, the American Diabetes Association, and other prominent public health organizations and nutrition experts.

“The majority of state or local regulations—those that simply require restaurants to provide nutrition information—therefore are not preempted,” wrote United States District Judge Richard J. Holwell. “Such regulations impose a blanket mandatory duty on all restaurants meeting a standard definition such as operating 10 or more restaurants under the same name.”